House Judiciary versus the imperial President

Fox News relates some stern criticism of our imperial President from this week’s House Judiciary Committee hearings:

Committee Chairman Rep. Bob Goodlatte, R-Va., says the president, “doesn’t have a debate in the Oval Office about what he wants to do,” adding, “he does what he wants to do, and then you no longer have representative democracy.”

George Washington University law professor and Obama supporter Jonathan Turley says he’s troubled by the expansion of executive power under both President George W. Bush and now President Obama.

“The problem of what the president is doing is that he is not simply posing a danger to the constitutional system; he is becoming the very danger the Constitution was designed to avoid: that is, the concentration of power in any single branch,” he said.

Rep. Goodlatte, who called the hearings, appeared on Fox News with Megyn Kelly to discuss them afterward:

The unitary executive had his defenders, too:

Article II of the U.S. Constitution calls on the president to “take care that the laws be faithfully executed.” Simon Lazarus, Senior Counsel for the Constitutional Accountability Center, says that’s exactly what President Obama is doing by modifying the ACA so that the law can be successfully implemented.

Lazarus also testified before the committee.

“I have to say that hyperventilating about how extraordinary and unprecedented and unconstitutional these delays are is just that, it’s hyperventilation and it’s contrary to obvious historical fact,” Lazarus said.

That’s an absurd rationalization, if not downright creepy. Presidents have unlimited power to violate the law in order make sure it’s “faithfully executed?” We had to break the law in order to preserve it. We had to burn the village in order to save it.

What Lazarus presumably means is that the President can do whatever it takes to ensure the “spirit” of a law succeeds, or that it meets its true “goals”… as defined unilaterally by him. Goodbye, separation of powers, checks and balances, Constitutional order, and all the rest of those antique notions from the pre-totalitarian era. The way it works now is, Congress agrees that something wonderful should happen, and the dictator-President makes sure it does. If you don’t like it, you can vote him out of office in four years. Or take it out on his designated successor, in the case of a lame duck like Barack Obama.

Though experts testifying before the committee mentioned impeachment as the ultimate check on executive power, Republicans on the committee gave the idea no real consideration – given that the Senate is controlled by Democrats. They also expressed frustration that under current legal precedent it is virtually impossible for members to sue the executive branch.

The experts seemed unified in expressing to the committee that the one viable solution “comes down to elections.”

What elections? The whole point of the imperial Presidency, and the dissolution of the Republic, is that congressional elections don’t really matter all that much. The lesson of the recent government shutdown is that the House of Representatives is almost entirely symbolic – it has little real power now. Control of the House means you get to hold hearings where experts say it’s a pity the House doesn’t have its enumerated powers any more.

The Senate still has some real power, but you might have noticed that the current Democrat majority has been busy stripping the minority of influence, using the very same maneuvers Democrats denounced as unspeakable offenses to the Constitution and the spirit of 1776 when they were the minority, in opposition to a Republican president. At this point, in all but a few respects, a President whose party commands 51 Senate seats holds virtually unlimited power, except for a few instances – certain to be far more common if Republicans hold the White House and Senate – where strong bipartisan opposition to the President takes shape.

It cannot be said enough that Americans would be absolutely foolish to accept a single presidential vote every four years as an adequate check on power. Obviously the framers of the Constitution didn’t think that was good enough. Too many modern voters have squandered their legacy of limited government because they view the President as the one official “everybody” votes for, so the unitary executive who can supersede or disregard Congress seems reasonable to them… when it’s a Democrat, of course. It seems quaintly amusing today, but liberals were very upset by George Bush’s allegedly unitary powers, back in the day. Their arguments make for hilarious comedy reading in light of the dizzying imperial powers asserted by Barack Obama, with virtually no objections from the people who thought Bush was pushing the boundaries of his office.

We hear a lot of talk about “consensus” and the “will of the people” these days. Not to be overly alarmist, but you will search history in vain for the record of a single tyrant who did not claim to be exercising the will of the people. In the modern American context, it’s foolish to accept the assertion by Obama defenders that a single presidential election expresses “the will of the people” for four years, with opposition becoming tantamount to “sabotage” or “treason.” There isn’t much that a huge, diverse country full of independent people reaches a true “consensus” on. The rough and tumble of congressional debate, complete with all its “stalemate” and “gridlock,” is a more accurate reflection of our national debate about important issues. If we have a Congress that doesn’t get things done, maybe that’s because there aren’t a lot of things we agree, on a national scale, that we want the federal government to do. Elections are not supposed to be punitive exercises against benevolent dictators who didn’t satisfy 51 percent of the electorate.

What Obama has done, particularly with respect to ObamaCare, goes far beyond exercising executive discretion to hammer out a few dents in an otherwise sound, faithfully executed law. He keeps doing things he has absolutely no statutory authority to do, and rarely even bothers to argue to the contrary. His “argument” always boils down to “I think it’s the right thing to do, and I don’t want to argue with Congress about it.”

But “arguing with Congress” is a vital component of the American system. To put it bluntly, if the President’s big brainstorm only works when he can rewrite the law on the fly, his program is garbage that is utterly incompatible with the American system of government. No representative of any party, in either chamber, should vote for a “law” that only “works” if the President can violate it at will. (Or, in the case of Obama’s largely forgotten insurance cancellation “fix” from a few weeks ago, invite other people to violate it, and promise not to prosecute them for a year.)

That’snot a law. It’s an assertion of raw power. There is a difference. American government is supposed to be about law, not power. Laws bind those who pass them. Laws bind the government, as well as the people. There are plenty of reasonable mechanisms for modifying or repealing laws that don’t work as planned. Even the Constitution has an amendment process, which has been used many times.

But following those processes dilutes the power of a dictatorial President and power-hungry party, because it means the opposition party gets to weigh in and extract concessions. Obviously the petulant Obama doesn’t want that. He wasn’t about to submit his proposed delay of the ObamaCare mandate to Congress for proper debate and ratification, so he did what the American system expressly forbids, and made unilateral, arbitrary changes to the law for nakedly political reasons. If the Affordable Care Act actually was “faithfully executed” as written, with the employer mandate kicking in on schedule, the ACA would most likely have been repealed by now, with a veto-overriding bipartisan majority driven by public outrage.

And that’s the way it should be. Presidents and congressional representatives should be afraid to pass laws that could blow up in their faces. They should be afraid of suffering from their hubris and arrogance. If there’s one thing America desperately needs right now, it’s humble government.

But we’re not going to get humble government any time soon, because as the House Judiciary hearings illustrate, there’s really nothing anyone can do about the imperial presidency at the moment. The ugly political genius of Barack Obama involved calling every bluff in the American system, which long ago degenerated past the point where any serious penalties awaited the aspiring dictator. In a real sense, that business about “elections” being the remedy for abuse of power means the media is the only real remaining check against presidential power. If the media doesn’t repeatedly tell people to get angry about something, and keep them good and riled all the way through an election, there’s no price to pay. Obama correctly judged he would never have to face that kind of press coverage.

The polite understandings and gentlemen’s agreements from previous years were swept aside like so many cobwebs by Obama, to replaced by a simple implied challenge: What are you gonna do about it, impeach me? He knows the answer is “no,” so he does as he pleases, with just enough restraint to keep his media allies from growing queasy. That’s not how America is supposed to work, and it’s no surprise that the results have been dismaying.

Update: Senator Ted Cruz (R-TX) made some of these points during an interview with Fusion TV:

(Hat tip: Washington Examiner.) Cruz makes an interesting point about dictatorship: it can exist without Castro-style imprisonment of dissidents. Dictators are always interested in suppressing dissent, but there are many less brutal ways of achieving that goal. The dangers of centralized power are not eliminated because it wears velvet gloves. It increasingly seems that Obama apologists make the argument that he’s not a dictator almost entirely based on the absence of gulags, as though any seizure of power that doesn’t involve tossing dissidents into concentration camps is acceptable. And it’s not as if this President has been shy about using the power of government to punish dissident Americans, and their political organizations, in a variety of interesting ways…